When Patients Become Difficult, Hostile, or Violent

By Paul Weber, JD OMIC

Vice President of Risk Management/Legal

Digest, Summer 2009

Ophthalmologists have the ability to provide care that improves their patients’ quality of life. This leads to many rewarding physician-patient relationships. Occasionally, however, ophthalmologists call OMIC’s Risk Management Hotline to ask how to best deal with very angry and sometimes violent patients. These situations range from patients who are merely complaining about their treatment and perhaps demanding a refund to physical assaults on the ophthalmologist or staff.

Data from the Bureau of Labor Statistics shows that in 2000, 48% of all non-fatal injuries from occupational assaults and violent acts occurred in health care and social services. OSHA, which publishes guidelines to prevent workplace violence, believes that the actual numbers are much higher. According to OSHA, “Incidents of violence are likely to be underreported, perhaps due in part to the persistent perception within the health care industry that assaults are part of the job.”1

The vast majority of assaults on health care workers occur in hospitals, nursing and personal care facilities, or while providing residential care services. Ophthalmology offices are not immune to such violence, however. In April 2001, an ophthalmologist and a refractive surgery coordinator were shot by a patient at the Anheuser-Busch Eye Institute at St. Louis university. The man, who had recently undergone cataract surgery, was caught an hour later with four guns and 400 rounds of ammunition. Noteworthy is the reported comment of the department chair, Oscar Cruz, MD, “We have had the perception that things like this cannot happen to us, but this shows that is erroneous.”

Recently, OMIC received a report from a practice where the patient, a pilot, underwent successful LASIK surgery. He later returned to the practice and asked the ophthalmologist to write a letter on his behalf to the FAA. The ophthalmologist explained that the FAA would only accept a particular form and assured the patient he would complete it for him. The patient became angry, locked the office door, and proceeded to hit the ophthalmologist, who only avoided injury by curling up in a fetal position. A female technician who was also in the room screamed. Others in the office at first thought it was a nursing home patient with dementia who was having a problem, but soon staff and patients gathered in the hall outside the door where the patient was assaulting the ophthalmologist. Four technicians managed to open the door and pull the patient off the ophthalmologist. Instead of leaving with his letter, the patient left in handcuffs.

Another OMIC report came from an insured who was being stalked by a patient. The patient, who had a history of itchy eyes, had not been seen in the practice for over a year but called in for a prescription refill for NSAID drops. He was told, per the insured’s policy, that he needed to be examined before a medication prescription could be renewed. He became verbally abusive to the office staff during several calls and threatened to go to the ophthalmologist’s home, indicating that he knew the address. One of the technicians who had dealt with the patient wanted to call the police, but the practice manager felt it wasn’t necessary since the patient had no history of inappropriate behavior. Staff did contact the ophthalmologist, who was out of town at the time, to warn him of the patient’s threats. The patient did in fact show up at the ophthalmologist’s house, and the house sitter immediately called the police, who came and told the patient to leave. The ophthalmologist took out a restraining order and terminated his care of the patient. As might be expected, this practice now has a lower threshold for calling police when patients are verbally threatening.

Be Prepared for Violence

Although actual physical violence is rare, every practice has angry and dissatisfied patients who might become violent. Practices would be well advised to assess this risk. The first step is to define workplace violence. The Centers for Disease Control and Prevention/National Institute for Occupational Safety and Health (NIOSH) defines workplace violence as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty.”2 This includes psychological trauma, such as threats, stalkings, obscene phone calls, intimidating presence, and harassment of any nature, including following, swearing, or shouting at another person. It is widely agreed that violence at work is underreported, particularly since most violent or threatening behavior may not be reported until it reaches the point of actual physical assault or other disruptive workplace behavior. Staff should understand that even non-physical acts, such as the psychological traumas listed above, are “violent acts” that need to be reported and handled.3

Once workplace violence is defined, a practice should develop policies and procedures identifying staff responsibilities in the event of violence (see sidebar). The OMIC web site has a detailed sample policy for handling disruptive or dangerous patients, www.omic.com.

Non-violent Aggression—When to Terminate the Physician-Patient Relationship

More typically, ophthalmologists and their staff are confronted with non-violent expressions of anger and aggression in the form of malicious oral and written criticisms of care, ultimatums for fee refunds, and threats of litigation. Some disgruntled patients are now taking to the internet and blogosphere to launch smear campaigns against physicians.

Generally, these situations don’t occur suddenly without warning, but rather rise to a boiling point over a period of time. Staff may not always notify the ophthalmologist when there is a problem, and, even when they do, the ophthalmologist may be reluctant to confront the patient and set limits. Recognition of worrisome behaviors and prompt discussion between the ophthalmologist and staff about how to proceed are undoubtedly the best first steps in managing the problem. Policyholders are encouraged to call OMIC’s Hotline for assistance as soon as a problem is recognized. As each situation is unique, there is no “one size fits all” approach.

Often, by the time the insured and staff call OMIC, they have already tried more than one approach to reason with and accommodate the patient and have concluded that the patient’s behavior has become so inappropriate that the ophthalmologist can no longer effectively provide the needed eye care. Even when the decision has been made to terminate the physician- patient relationship, there are several issues that commonly arise and can be addressed by OMIC risk management staff.

What is the reason for the patient’s anger?  Oftentimes, a patient’s anger is understandable, e.g., a complicated surgery results in a poor outcome. However, it is the patient’s behavior (outbursts in the reception area, ultimatums to staff, threats of a lawsuit) that compels the physician to terminate the relationship. While the anger can be understood and acknowledged, the behavior should not be tolerated. Even though situations involving an “unanticipated outcome” often raise fears that the patient may file a lawsuit, in the vast majority of cases, OMIC risk management and claims staff are able to assist insureds in averting such a claim or minimizing the adverse impact if one is eventually filed.

Are family members involved? When a spouse or other family member who accompanies the patient is acting inappropriately (threatening litigation, calling or writing the ophthalmologist, or otherwise making it difficult for the ophthalmologist to provide care), it may seem unfair to terminate the relationship with the patient. However, the patient is usually implicitly or explicitly allowing the other person to interfere and there may be no alternative but termination.

Is the patient a minor? Situations in which a parent or guardian is behaving in a manner that prevents the ophthalmologist from providing care can be the most difficult to deal with because the ophthalmologist is relying on the parent for compliance with treatment, appointments, and other aspects of the child’s care. For some ophthalmologists, terminating the care of a minor patient becomes a moral dilemma. Will the child be harmed if the parent decides not to seek care from another physician?  Is this a case of neglect on the part of the parent? Is it appropriate to contact child protective services?

What is the patient’s current clinical status? It may not be possible to terminate a patient who is in an acute stage of an illness; however, if another provider is willing to take over care, even an acutely ill patient may be transferred out of the practice. Most patients can be safely discharged from care with 30 days notice.

Does the patient have limited English proficiency? Patients should understand why they are being terminated from a practice. If there is a language barrier and a family member or other person is translating for the patient, this should be documented in the chart.

Is the patient seeking a refund/ fee waiver? Refund/fee waiver issues frequently arise with very angry patients. While a patient’s demand for a refund/waiver may be presented in a reasonable manner initially, if the practice refuses this “reasonable” request, the patient’s posture may quickly become more aggressive.

Should local defense counsel be assigned? OMIC may engage an attorney on behalf of an insured or advise the insured to seek personal counsel if, for instance, the patient’s behavior is in violation of the law, such as posting libelous statements about the insured on the internet. In such cases, a letter from an attorney warning the patient to “cease and desist” generally results in the patient discontinuing the behavior.

Is the patient mentally impaired?  One very sad case involved a patient who believed his eyes were infected with crab lice. Neither the OMIC insured nor the prior treating ophthalmologists could convince the patient that he did not have crab lice. In an effort to self-treat, the patient poured highly concentrated enzymatic cleanser in his eyes and suffered very severe burns of the cornea and conjunctiva, causing pain which he believed was due to the crab lice. The insured attempted to treat the burns over the course of ten visits, during which he urged the patient to be seen at the university hospital for a second opinion and possible hospitalization. The patient filed a complaint with the state medical board alleging negligent treatment by the insured. Although the patient was clearly delusional, the medical board complaint still needed to be addressed in a timely and matter-of-fact manner.

Fortunately, most patients do not become angry at their physician and most behave in a manner that is conducive to the provision of care. However, in those cases where a patient’s behavior is unmanageable, ophthalmologists and their staff will benefit from having a plan in place to deal with unacceptable behavior. This includes calling OMIC for support and assistance in managing the situation to minimize the risk of harm to the patient and a professional liability claim against the insured.

The OMIC web site has a full discussion on terminating the physician-patient relationship along with sample letters in the Risk Management Recommendations section at www.omic.com.

Assignment of Responsibilities in Event of workplace Violence

Your office policy for handling disruptive or dangerous patients should outline specific procedures for notifying employees, outside authorities, and others in an emergency situation, including:

• How to assess the severity of the situation and its impact on the office.

• When to call police or other appropriate authorities.

• The chain of command. Each employee and supervisor should know their specific responsibilities in an emergency and at what point those responsibilities shift to others.

• Who determines what information is communicated to other employees.

• How to handle public relations issues for the office, if applicable.

• How to determine whether counseling will be provided to affected employees and other individuals.

(From ECRI Special Report: Physician Office Safety Guide, 1998)

1. US Department of Labor Occupational Safety and Health Administration. “Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers.” OSHA 3148-01R 2004, p. 6.

2. Ibid, p. 4.

3. National Institute for Occupational Safety and Health. “Workplace Violence Prevention Strategies and Research Needs.” NIOSH 2006-144. www.cdc.gov

Red Flags Rule, HITECH/HIPAA Obligations, and RAC Audits

The Federal Trade Commission again postponed enforcement of the “Red Flags” rule for health care providers through December 31, 2010, largely in response to a lawsuit by the American Medical Association. The Red Flags rule, passed in 2003 under the Fair and Accurate Credit Transactions Act, requires that “creditors” create a written protocol to protect sensitive financial information and notify clients of security breaches.

The HITECH Act, an amendment to the HIPAA Privacy law, passed in late 2009 as part of the American Recovery and Reinvestment Act. It requires that physicians maintain a protocol to protect patient’s sensitive health information. Violations are subject to penalty immediately, with an extended implementation period for physicians who use Electronic Medical Records systems.

As part of the Tax Relief and Health Care Act of 2006, the Centers for Medicare and Medicaid Services authorized the Medicare Recovery Audit Contractor (RAC) program to identify improper Medicare payments. A temporary “stop work” order during litigation regarding the awarding of RAC contracts was resolved in 2009 and the law was expanded to all 50 states this year. Contracted auditors across the country are paid a contingency fee to identify improper billing practices and receive a portion of the over (or under) payments they collect from health care providers.

OMIC’s professional liability policy provides coverage for patient notification costs associated with regulations such as the Red Flags rule and HITECH Act, subject to a sublimit of $10,000 per policy period. RAC audits and other “billing errors” proceedings are covered at a sublimit of $35,000 per policy period. Coverage provides reimbursement for legal and audit expenses, including shadow audits, as well as fines and penalties (where allowed by law).

Evaluating Competency, Handling Incompetency

By Anne M. Menke, RN, PhD

OMIC Risk Manager

Digest, Spring 2010

All physicians, at some point, will find themselves in situations where they need to evaluate their own or another health care provider’s competency. Especially when evaluating others’ competency, physicians are often unsure of the best way to do so, how to communicate their evaluation to the subject, and their responsibility to report their findings. Viewing the issue from the patient safety perspective provides guidance. The following two OMIC case studies furnish a basis for considering the process.

A senior ophthalmologist was gravely concerned. This wasn’t the first time his partner had run into problems with poor outcomes and dissatisfied patients. Four patients had even sued for medical malpractice about seven years ago. In each case, the other partners, OMIC, and defense experts had supported the ophthalmologist’s care, and all four cases had been dismissed without an indemnity payment. Then one year ago, a patient experienced a ruptured posterior capsule. uncharacteristically, the ophthalmologist didn’t manage the complication well in the OR or during the postoperative period. Indeed, his attempts to recover the nucleus caused further damage. He never did a postoperative retinal exam despite worsening vision problems and never referred the patient to a retinal specialist. Discussing his care with the defense attorney assigned to assist him, the ophthalmologist was the first to offer the above criticisms, and agreed to settle the lawsuit against him for $160,000.

Now, nearly a year after that surgery, the group learned of four new cataract cases with poor outcomes, and all felt the surgeon’s technique was clearly substandard. They had also noted changes in his behavior. The senior partner raised these quality and health concerns with his colleague at regular, short intervals—to no avail. The partners concluded that something was seriously wrong with their close friend and colleague and issued a mandatory order that he cease patient care. Their worst fears were confirmed when he was examined by a neurologist and deemed mentally incompetent secondary to frontal lobe dementia. Lawsuits based on the ophthalmologist’s substandard care ensued, ultimately settling for a total of $850,000.

Another ophthalmologist did not have the benefit of partners. When this young physician went out of town without arranging for coverage, and his patient presented to the ER with endophthalmitis, the on-call ophthalmologist did not contact him to raise concerns, opting instead to report him directly to the state medical board. Although the board supported the young physician’s care, it noted that he had a higher- than-average rate of infection, and ordered him to write an article on endophthalmitis and submit his plan for coverage if he was ever again unavailable to see his patients after- hours. His well-researched article was accepted; but the board wanted more detail on his coverage plan. Rather than comply, he resigned his license, having already relocated to another state.

Pursuant to policies advised by the Federation of State Medical Boards, the first board contacted the second board to alert it to the physician’s prior problems and licensure change. In the course of its own independent investigation, the second state’s medical board was contacted by several patients and physicians, all of whom raised new quality of care concerns about this ophthalmologist. The board suspended his license, ordered a psychiatric evaluation, and later mandated six months of retraining and mentorship.

The academic eye center that agreed to retrain him was located in a neighboring state; it not only eventually assured the board that it was satisfied with his care, but offered him a position. The ophthalmologist has practiced there for several years without incident; nonetheless, ten patients in the second state ended up suing him. Defense experts raised the same concerns as the physicians who had contacted the state medical board. Eight of the ten lawsuits settled; indemnity payments ranged from $50,000 to $340,000, and totaled $1,795,000.

Everyday Competency Scenarios

Not all ophthalmologists will have to confront situations as complex as these two, but they will routinely face scenarios where they need to evaluate their own and others’ competency. Consider these situations.

You are a comprehensive ophthalmologist and have many patients with AMD who require intravitreal injections. You would like to provide the care yourself instead of referring these patients to a retinal specialist. How do you evaluate your own competency?

You fracture your wrist. How do you know when you are able to perform surgery safely again? Do you need to disclose anything to your patients?

A physician you don’t know calls you from the ER to discuss a patient. He feels the patient can be seen by you the next day. How do you assess the ER physician’s competency to evaluate an eye condition? What should you do if you have concerns?

The senior partner in your practice is taking longer and longer to complete his surgeries and his complication rate is rising. How should you handle this?

A patient self-refers complaining of a surgical complication resulting from another ophthalmologist’s care. Based upon the patient’s history and your examination, you have no concerns about the prior care or surgery, even though the patient feels some mistake was made. How should you respond? How should you handle the patient if you do have concerns about the quality of prior care?

Your practice has decided to incorporate optometrists. How do you determine which patients they can see independently, which require a consult with an ophthalmologist, and which should be referred to an ophthalmologist?

Avoiding Harm, Meeting Ethical Duties

Every physician takes the Hippocratic oath, affirming a commitment to “first, do no harm.” Doctors are also aware of ethical standards that impose a certain level of responsibility for ensuring that other physicians avoid maleficence as well. According to the American Medical Association, “A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.”

The American Academy of Ophthalmology encourages members who have a reasonable belief that another ophthalmologist deviated from the standards of patient care or ethics to take action to stop the questionable behavior. As a first step, the AAO recommends communicating directly with the eye surgeon. The Academy member should report the ophthalmologist to authorities only if such communication is ineffective or infeasible.

In both of the situations described earlier, physicians had concerns about the care rendered by another ophthalmologist. Those within

the group practice communicated directly with their colleague about his results and his health. The ophthalmologists in the second case made no such attempt. It’s unclear why they decided to report the physician to their state medical board as the first step. Perhaps they did not know the physician well enough or felt uncomfortable raising their concerns with him. They may have been direct competitors or had previous unpleasant encounters with this or another physician in similar circumstances. What is clear is that confronting and reporting incompetent physicians is a daunting task.

OMIC policyholders who have attended our risk management course on competency and incompetency at this year’s state and subspecialty meetings have been asked to describe the barriers that prevent physicians from taking corrective action when they encounter another physician who is incompetent or impaired. Here are their responses.

Barriers to Taking Corrective Action

• unprofessional to “break silence”
• uncertainty about suspicions
• Not sure how to evaluate competency
• No access to physician’s medical records
• Lack of personal observation of the physician’s surgery or care
• Fear of seeing one’s own incompetency
• Fear of retaliation from physician and/or community
• Risk of unintended consequences
• Fear of not being believed
• Fear of being wrong
• Fear of confrontation
• Compassion for incompetent/impaired colleague
• unwillingness to impact physician’s livelihood
• Don’t know where to report concerns
• Peer pressure
• Loss of referrals
• Don’t want to get involved
• Incompetent physician is in position of authority
• Reticence to judge others
• Rationalization of physician’s behavior
• Extra work and time involved to resolve the problem
• No structured venue where issue can be raised without legal ramifications
• Conflict of interest
• Lack of faith that the medical board will handle investigation well

Moving the Conversation Into the Patient Safety Arena

Physicians had these same misgivings years ago when professional associations, insurance companies, hospitals, and regulatory agencies started encouraging them to discuss unanticipated outcomes with patients in a more forthright manner. The same principles evoked in ethical standards about competency run through articles on patient safety: first do no harm, honesty is the best policy, safety must be actively created. Just as patients have the need and the right to know their condition, treatment options, complications, outcomes, and errors, physicians have the right and the need to know of concerns, complaints, and errors attributable to them. Consider these conversations the second wave of disclosure discussions and opportunities to create safety by carefully evaluating all threats to it.

As part of ongoing efforts to monitor care and create safety, watch for signs of your own and your colleagues’ incompetency or impairment. Early indications are often not clinical. Instead, they include complaints from patients, staff, and other physicians, a disruptive personality, difficulty creating and maintaining rapport with others, and a sense that the physician “does not play well with others.” Studies have shown a clear link between poor communication skills and poor outcomes,1 often starting in medical school. Don’t ignore these signs or hope they will go away. Instead, remember that “inappropriate is unsafe” and investigate further.

Take Corrective Action

Research on patient safety has led us to recognize that medicine is a complex process, and that conscious effort is required to create safety. While a non-punitive approach to errors is advocated, it is also clear that disciplinary action, including mandatory remedial training, has its place. Some academic centers have developed models and programs to address competency concerns. For example, Vanderbilt university Center for Patient and Professional Advocacy describes an escalating approach. All physicians are monitored, and each complaint or concern is shared with the affected doctor, who is told that heorshe“hasarightandaneedto know.” Please see the Hotline article for suggestions on talking to physicians about competency concerns.

If concerns persist, a trained peer counselor meets with the individual in question and explains that other physicians are not generating the same number or type of complaints: “You are an outlier. Please review these materials before our next meeting.” If the physician is unable or unwilling to take corrective action, a referral is made to an authority figure who considers whether a disciplinary response is warranted. If, as in the case of the second ophthalmologist, more training is needed, the physician will need to be referred to an academic center. One such center, the university of California, San Diego’s Physician Assessment and Clinical Education (PACE) program, offers individualized evaluation and training for physicians whose medical boards or institutions have identified gaps in their knowledge, training, or communication skills.

Physicians are understandably wary of evaluating competency and managing incompetency and impairment. Institutions and professional associations, feeling the public pressure generated by regular stories of medical errors, are less reticent. Many are now requiring outcome tracking and ongoing quality review. OMIC policyholders who face these obligations are encouraged to seek assistance from our confidential Risk Management Hotline at (800) 562- 6642, ext. 641.

1. Hickson GB, Federspiel CF, Pichert JW, Miller CS, Gauld-Jaeger J, Bost P. “Patient Complaints and Malpractice Risk.” JAMA 2002 Jun 12; 287(22): 2951-7.

Message from the Chairman

In this issue of the Digest, we review the patient safety and professional liability risks that arise when care is coordinated with optometrists and provide suggestions for minimizing these risks. OMIC’s concern comes from the fact that we provide direct professional liability coverage to some 300 optometrists employed

by OMIC insured ophthalmologists and cover vicarious liability exposure for approximately 35% of OMIC’s 4,200 insureds who employ or contract with an optometrist.

OMIC believes that ophthalmologists and optometrists generally work well together to the benefit of patients. However, to maximize patient safety and minimize professional liability risks arising from MD/OD collaboration, we strongly recommend that the optometrist’s role be defined in terms of conditions he or she can manage independently, conditions requiring consultation with an ophthalmologist, and conditions requiring management by an ophthalmologist. To assist our insureds, OMIC has developed comprehensive risk management guidelines and protocols recently published as “Coordinating Care with Optometrists.” With these risk management guidelines, ophthalmologists will be able to develop written policies and procedures in compliance with their respective state laws and other office policies. This document may be found at www.omic.com/resources/risk_man/ recommend.cfm.

OMIC regularly reviews and updates its underwriting requirements and risk management guidelines to keep current with changes in the education and scope of practice of optometrists. Areas of concern recently addressed by OMIC and described in the coordinating care document are risks that arise when optometrists are involved in after-hours care and ER coverage. These risks are increasing as more ophthalmology practices expect their employed or contracted optometrists to see patients after-hours and triage calls from the ER. The practice must have a protocol in place to address situations that optometrists cannot handle independently. If a practice is in a call group, it must also determine whether the other practices in the call group have their own employed/ contracted optometrists taking call. If so, it is important that these practices also have a protocol in place to address the role of optometrists on call.

As coordination of care with optometrists increases, we want our policyholders to know that OMIC is supportive of comanagement so long as it is in the best interests of the patient and is carried out in a manner that minimizes unnecessary exposure to claims.

Richard L. Abbott, MD OMIC Chairman of the Board

The Risks and Benefits of Malpractice Litigation

By Paul Weber, JD, ARM

OMIC Vice President of Risk Management/Legal

Digest, Winter 2011

The risks associated with a medical malpractice lawsuit are well known to most ophthalmologists. Not only is there the financial risk of a large monetary award to the plaintiff, but also the threat to the ophthalmologist’s professional reputation. Additionally, a malpractice lawsuit can be a very demoralizing event. As observed by OMIC insured Gerhard W. Cibis, MD, “No amount of risk management articles or seminars can prepare a physician for the emotional devastation of being sued.”1 Regardless of whether they win or lose the lawsuit, physicians who are sued are at risk for severe emotional distress. The serious psychological effects of malpractice litigation have been addressed by psychiatrist Sara C. Charles, MD,2 and best selling author Atul Gawande, MD.3

Given what is often a personally and professionally devastating event, it may be hard to believe that anything positive could emerge from malpractice litigation; however, the experiences of ophthalmologists who are sued can teach us valuable risk management lessons and may even help bolster the morale of others who are themselves in the middle of a claim or lawsuit.

In 1995, the OMIC Board of Directors requested that a closed claim questionnaire be sent to any insured involved in a claim at its conclusion. The Board’s interest in surveying insureds was twofold. Directors wanted feedback from insureds regarding the performance of staff and defense counsel assigned to their case. This was important to ensure that OMIC was providing an efficient and supportive claims service. They also wanted to follow up with insureds regarding risk management issues that were brought to their attention during the course of the claim as well as loss prevention steps taken by these insureds to reduce the likelihood of future claims. They believed this information could benefit all insureds and help reduce overall frequency and severity of ophthalmic claims.

Over the past 15 years, OMIC’s Claims Department has compiled responses from 1,241 questionnaires completed by insureds who have thoughtfully focused on ways to avoid future claims and frequently pointed out how they prevailed in their litigation because of good risk management practices they had already implemented. The two areas of concern that are consistently cited by insureds are problems with documentation and informed consent.

Documentation Issues

Documentation issues manifest in claims in different ways, sometimes serving as a shield to protect and defend the physician and other times used as a sword by the plaintiff if critical documentation is found lacking. About the importance of documentation, one insured wrote on his questionnaire, “I am much more aware of the need for careful documentation of my communications with other physicians, optometrists, and others involved in the patient’s care.“ Another said simply, “Documentation cannot be overstated.”

One particular area of concern frequently cited by insureds is the importance of documenting telephone calls. In several cases, the only connection the insured had with a patient was one phone call from the hospital ER. A bad outcome for the patient and different accounts of what the ER physician and the ophthalmologist said, and documentation of the phone conversation became a critical factor in the insured’s defense.

One approach to documenting after hours or out of office phone calls is to use OMIC’s “Patient Care Phone Call Record Pad.” This is a 3 x 6 inch pad of 25 perforated, lined forms that prompt the ophthalmologist to document relevant information, such as patient history, prescribed medications, and follow-up. These pads have been very popular with insureds for many years as they can be placed in various places where calls are taken after hours or while on call (e.g., at home or in the car). The form can later be placed in the patient’s chart. Phone pads are available free to OMIC insureds upon request. Contact the Risk Management Department at (800) 562-6642, ext. 652.

OMIC has also developed a detailed guide to help ophthalmologists and their staff effectively screen, manage, and document patient calls. “Telephone Screening of Ophthalmic Problems: Sample Contact Forms and Screening Guidelines” may be found on the OMIC web site at www.omic.com.

Informed Consent

Approximately half of the claims brought against OMIC insureds are related to surgical procedures. Allegations include improper performance of surgery, improper management of a surgical patient, unnecessary surgery, and wrong eye/ wrong powered lens. Every surgical procedure an ophthalmologist performs involves the informed consent process. Lack of informed consent is a frequent allegation that plaintiff lawyers include in any medical malpractice lawsuit.

Although OMIC emphasizes that informed consent is a process and not simply a matter of the patient signing a document, we have addressed the documentation component of the process by developing more than 60 procedure-specific informed consent documents. They can be found on our web site at www.omic.com

These documents are specific to the procedure being performed (e.g., cataract, retina, oculoplastic) and are meant to memorialize that the patient had a discussion with the ophthalmologist and understood the risks, benefits, and alternatives to this procedure. One insured commented, “I now use my own specific informed consent document for my chart regardless of what is required at the facility where I operate.”

Insureds who have had claims know from experience that informed consent is further complicated because patients may have difficulty understanding the medical information and complex procedure they are consenting to. Plaintiff attorneys highlight this complexity and try to show that the physician did not take the time necessary to help the patient adequately understand the risks. Every ophthalmologist and practice faces this challenge and needs to address the consent process differently depending on the procedures performed, the communication skills of support staff assisting in the process, the patient population, and the availability of patient education materials.

Despite these differences, all insureds who have been sued agree that the experience makes them more focused on having meaningful discussions with patients and efficiently documenting the consent process.

“I now ask patients what they expect from planned surgery to see if they have realistic expectations.”

“I am more open with patients about possible complications and have longer pre-op discussions.”

Some ophthalmologists find that using a checklist helps them address specific issues with a particular patient (e.g., language barriers, use of herbal medicines) and document the process. This approach won’t work in all practices or situations, but a checklist can take some of the complexity out of the informed consent process. A sample checklist, “Consent to Treatment Certification Document,”4 is available on the OMIC web site at http://www.omic.com/resources/ risk_man/recommend.cfm#obtaining.

The Defense Team

OMIC insureds who have been through litigation comment on the importance of becoming a team member with defense counsel and OMIC staff. Staff is integral to the defense team and

is the first point of contact when insureds find out they are going to be sued. Each insured is assigned a litigation analyst, who manages the claim until it is resolved. The analyst explains the litigation process and makes sure the ophthalmologist is informed about each step in the process and able to participate fully in his or her own case.

“OMIC staff worked closely with me and my defense attorney. She kept me in the loop and kept my confidence up that we had a good team and defense.”

The “quarterback” of the team is the defense attorney who is retained to represent the insured. OMIC appoints attorneys who have significant expertise in medical malpractice litigation, knowledge of ophthalmology, and proven effectiveness in jury trial cases. OMIC insureds prevail in almost 90% of the cases taken to trial and having an attorney who is skilled in trial tactics and strategy is fundamental to success in the courtroom.

“He was a very experienced attorney with excellent knowledge of the clinical issues involved in the case. He was always available and went out of his way to become informed and do the necessary ‘leg-work’ to offer our side every advantage at trial.”

But no matter how exemplary the skills and experience of the attorney and OMIC staff, a successful defense requires the full participation of the ophthalmologist whose knowledge, insight, and experience are essential elements in preparing the defense’s case. Litigation is often a long and tortuous process that can play out over many years. understandably, attending depositions, reviewing documents, and meeting with defense counsel can be frustrating for busy physicians. However, OMIC insureds have learned that making the commitment to become an active member of the defense team is an important element in bringing about the best possible resolution to their case. Dr. Cibis advises insureds:

”Go over the facts of the case, especially the medical records, again and again. Each time you do, new angles and facets will appear. Do not begrudge the time you spend with your defense attorney. Do not cancel or cut short meetings with your attorney. Thoroughness in preparation comes to the fore during the deposition and especially during the trial.”

Other Lessons Learned from Litigation

In addition to risk management issues, insureds who have been sued provide insights and perspectives on the overall litigation process. Over three-quarters of claims against OMIC insureds are dismissed without any payment to the patient. A large percentage of these claims have no legal merit and arguably should never have been filed. Consequently, many comments from insureds center on the arbitrary or unfair nature of the tort (justice) system in this country and its negative impact on practicing medicine.

“It is a travesty that this case proceeded as far as it did. What a splendid reason for tort reform.”

“The patient would have sued regardless of any steps I, or anyone, could have taken.”

Insureds who are sued because of unrealistic patient expectations report that the experience makes them better at identifying a patient’s motives for surgery.

“I now listen more to my ‘gut’ and take this into consideration as far as patient selection.”

“I try to be more aware of patients’ personality and character.”

Fatalistic and sometimes angry comments about a particular patient or patient population are not an uncommon reaction to feeling attacked both professionally and personally. The Physician Litigation Stress Resource Center says anger is a repercussion of litigation.

“Sued physicians, for example, often feel that the suit is not only unfair but totally unjustified. These feelings can translate into intense anger that can result either in outbursts toward others or simmering inward rage that can contribute to the development of guilty feelings and/or significant stress-related symptoms, such as headache, hypertension, coronary artery or gastrointestinal disturbances.”5

Resources to deal with the anger and other difficult emotions that might arise during and after litigation may be found on the Physicians Legal Resource Center web site at http://www. physicianlitigationstress.org/index.html.

Fortunately, most OMIC insureds are able to work through their anger and their comments are particularly instructive for others who are facing or might face litigation in the future.

“I was able to get through this horrific ordeal relatively unscathed, but a bit stronger from my scars. The phone call I received informing me that my case had been dismissed ranks, in terms of emotional impact, just below that of my children being born.”

“I had often thought I would not survive a lawsuit. I did. I am even more committed to my job as an ophthalmologist than before.”

“I am humbled at the experience I have gone through during this four- year process. I am grateful (to OMIC) to have the representation that I had to help resolve the case prior to trial. I hope to be able to share my experience with others in the future so they understand that while frustrating, the process works.”

“It was a very stressful experience but I am a wiser doctor for having gone through it.”

There is an eloquence, poignancy, and hopefulness to these comments. The willingness of these insureds to share their sentiments about litigation and their insight into risk management is of benefit to all OMIC insureds. We owe them a debt of gratitude.

1. Cibis GW, MD. “How to Survive a Malpractice Lawsuit and Emerge Stronger.” OMIC Digest, Fall 1993.

2. Charles SC, Frisch PR. “Adverse Events, Stress, and Litigation: A Physician’s Guide.” Oxford University Press, 2005.

3. Gawande A. “Complications: A Surgeon’s Notes on an Imperfect Science.” Picador, Henry Holt and Company, 2002.

4. Rozovsky FA. “Consent to Treatment: A Practical Guide,” 4th Edition. Aspen Publishers, 2011 (with annual supplements).

5. Physicians Litigation Stress Resource Center.